By Dan Starck

The Supreme Court will hear oral arguments in Pepper v. United States on December 6thhttp://www.scotusblog.com/case-files/cases/pepper-v-united-states. The central issue is the Eight Circuit’s ban on consideration of post-sentencing behavior during resentencing.  For Jason Pepper, the upshot of the Eight Circuit’s decision is a forced return to prison for the same crime years after his release.

 Pepper pled guilty to a federal drug conspiracy charge in 2004.  The Federal Sentencing Guidelines suggested a sentence of 97 to 121 months based on the nature of the crime and circumstances.  The government moved for a 15% sentence reduction based on Pepper’s “substantial assistance” during the investigation. The trial judge went one step further and sentenced Pepper to 24 months in prison with a five year supervised release based on Pepper’s strong family support, future potential, and likelihood of successful rehabilitation. 

The trial judge’s appraisal came to fruition.  Pepper was a Bureau of Prisons success story. He served two years in prison where he successfully completed a drug rehabilitation program and had no subsequent criminal history.  After his release, he graduated college, started a family, and found a steady job

The government, however, was not satisfied with the length of Pepper’s sentence.  They successfully appealed to the Eight Circuit, which ruled that the trial court erred in considering factors beyond “substantial assistance” during sentencing.  In keeping with the speed and efficiency of the legal system, resentencing occurred ten months after Pepper’s initial release.  His parole officer recommended a downward variance based on the case’s unique mitigating factors.  Coupled with the “substantial assistance” reduction, the downward variance amounted to a 24 month sentence.  The second trial judge agreed and left the original sentence intact.

Once again, the government appealed.  Once again, the Eight Circuit remanded, holding that the trial court improperly considered Pepper’s post-sentence rehabilitation to justify the downward variance.  On remand, a new trial judge gave Pepper the shellacking the Eight Circuit wanted.  Not only did she eliminate the downward variance but also narrowed the previous reduction for substantial assistance to a grand total of 65 months in prison.  Pepper returned to prison in April, 2009, over three years after his first release.

                Pepper argues that the blanket prohibition on using post-sentencing behavior to inform resentencing violates two federal statutes—18 U.S.C. §§ 3661, 3553(a).  Together, these statutes require judges to account for the defendant’s history and characteristics during sentencing.  In a strange twist, the Justice Department agreed.  By the time the Supreme Court granted cert, the DOJ supported the petitioner’s position and suggested the Court remand to the Eight Circuit. The Supreme Court, however, thought otherwise.  They appointed anamicus curiae to argue the Eight Circuit’s increasingly lonely position.  Appointing counsel to argue a position abandoned by both parties is not common.  Hopefully for Mr. Pepper, the Court is setting up a thorough repudiation of the decision that landed him in jail—again.